Journal of Air Law and Commerce Volume 67 | Issue 3 Article 7 2002 Re-Regulation and Airline Passengers' Rights Timothy M. Ravich Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation Timothy M. Ravich, Re-Regulation and Airline Passengers' Rights, 67 J. Air L. & Com. 935 (2002) https://scholar.smu.edu/jalc/vol67/iss3/7 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. RE-REGULATION AND AIRLINE PASSENGERS' RIGHTS TIMOTHY M. RAViCH* TABLE OF CONTENTS I. INTRODUCTION .................................. 935 II. PASSENGERS' BILL OF RIGHTS .................. 939 A. THE IMPETUS AND HISTORICAL AT'TEMPTS ....... 939 1. The Origin of Passengers' Rights Proposals .... 940 2. Service, Competition, and Preemption.......... 945 B. THE INITIAL EFFORT (1999-2000) ............... 947 C. THE AIRLINES' RESPONSE AND COMMITMENT .... 952 D. THE FINAL DOT REPORT AND 2001 ............. 956 III. DISCU SSIO N ...................................... 958 A. WHITHER DEREGULATION? ...................... 958 B. CULTURAL DEVOLUTION ......................... 964 C. CONTRACT As PANACEA ......................... 970 D. DEMAND MANAGEMENT ......................... 976 1. (Over)Scheduling and Infrastructure .......... 977 2. Industry Consolidation and Market Entry ..... 986 E. SEPTEMBER 11, 2001: A NEW ROLE FOR AIRLINE PASSENGERS ..................................... 992 IV. CONCLUSION ..................................... 996 I. INTRODUCTION Airline passengers increasingly expect basic airline service as a matter of law and entitlement rather than as a function of busi- * Attorney, Hunton & Williams. J.D., cum laude, University of Miami School of Law. The author presented aspects of this Article at the "Fourth International Travel and Tourism: Policy, Law and Management Conference," Newcastle upon Tyne, United Kingdom, May, 2002. The author gratefully acknowledges the valuable comments on earlier drafts provided by Aaron Comenetz, Jaret Davis, Esq., Terrance A. Dee, Esq., Dana E. Foster, Esq., Heather Ravich, Esq., Robert D. Rightmyer, Esq., Loretta B. Todzia, Esq., and Justin B. Uhlemann, Esq. Thanks also to Yolanda Arnavat-Parga, Rosy Lopez, and Lois S. Randall for substantial support. This Article was written solely in the author's personal capacity and not on behalf of or at the request of any other. 935 936 JOURNAL OF AIR LAW AND COMMERCE ness and market forces. Unprecedented access to air travel, gen- erated in large part by low fares, has aggravated, distorted and reinforced this expectation. The tragic events of September 11, 2001 ("September 11"), during which terrorists hijacked four commercial jetliners and navigated two into New York City's World Trade Center Twin Towers and one into the Pentagon,' necessarily have amplified the role of law and government in the deregulated airline market. While the law affords Americans a relatively unfettered ability to travel,2 it has not, as a practical matter, secured pleasant or hassle-free travel in the modern der- egulated era. From 1999 through the current Congressional term, passenger and government outrage with airline' service and accountability energized federal legislators, themselves air- line passengers, to present more than three dozen proposals col- lectively referred to as the "Passengers' Bill of Rights" (the "PBOR").4 This Article examines and criticizes these popular and legislative impulses to secure better airline travel exper- iences within the United States by operation of law.' I A fourth airliner crashed in rural Pennsylvania after several passengers counter-attacked the hijackers onboard. JERE LONGMAN, AMONG TH-E HEROES: UNITED FLIGHT 93 AND THE PASSENGERS AND CREW WiHo FOUGHT BACK (HarperCollins 2002); see infra text accompanying note 263. See generally Robert A. Brazener, Annotation, Liability of Air Carrierfor Damage or Injury Sustained by Passenger as a Result of Hijacking, 72 A.L.R. 3d 1299 (1976). 2 United States v. Guest, 383 U.S. 757, 758 (1966) (establishing that "freedom to travel throughout the United States has long been recognized as a basic right under the Constitution"). But see William Mann, Comment, All the (Air) Rage: Legal Implications Surrounding Airline and Government Bans on Unruly Passengers in the Sky, 65J. AIR L. & COM. 857 (2000) [hereinafter Mann, Airline and Government Bans on Unruly Passengers];John A. Glenn, Annotation, Validity, Under Commerce Clause of Federal Constitution, of State Tolls or Taxes On, Or Affecting, Interstate or For- eign Air Carriersor Passengers, 31 L. ED. 2D 975 (1999). 3 For convenience, notwithstanding differences among air travel providers, the terms "airline(s)" and/or "carrier(s)" are used throughout this Article to refer to both major air travel providers that route their flights within a hub-and-spoke system (see Part III.D.1, infra) and low-fare, specialty carriers such as Southwest Airlines and JetBlue, which offer point-to-point networks of flights. 4 The subject legislation joins modern governmental and popular-culture ef- forts to buttress perceived entitlements rather than constitutionally-secured rights with legislation bearing the historically-significant title "Bill of Rights," in- cluding, inter alia, Consumers' Bill of Rights, Health Care Bill of Rights, Patients' Bill of Rights, Taxpayer Bill of Rights, Veterans Bill of Rights, etc. Greenfield At Large, Are Some of the 'New Rights' the Wrong Stuff?. (CNN television broadcast, June 19, 2001) ("Are these the same kind of rights our forefathers fought and died for? ... sometimes it seems that every interest group has a proposal to create a new bill of rights."). For a discussion of airline passengers' rights initiatives overseas see Jeffrey Goh, Air PassengerRights: The Third Way, 8 CONSUMER L.J. 407 (2000) (examining 2002] RE-REGULATION AND RIGHTS 937 The PBOR legislation will not improve airline service under any circumstances. These legislative efforts to codify passenger service rights are largely motivated by normative conceptualiza- tions of good and bad airline service and practices. In the ag- gregate, the PBOR legislation, coupled with the still-evolving reality presented by the novel terrorism of September 11, repre- sents an important point in the history of deregulated commer- cial airline travel. The PBOR proposals represent an unfulfilled Congressional appetite to regulate6 airline conduct and rede- fine the relationship between carrier and passenger.7 To the ex- tent that they promote government interposition between carrier and passenger with respect to basic service issues, the PBOR initiative establishes important, but unwanted and un- helpful precedent. While substantial commentary exists as to the economic benefits, weaknesses and imagined consequences of the deregulated airline system,' this Article examines the ser- the European Commission's "Airline Passenger Service Commitment" and "Air- port Voluntary Commitment on Air Passenger Services"); see also Ellchiro Seki- gawa, Japan Tackles Flight Rights of Mentally Ill Passengers, AVIATION WK. & SPACE TECI., July 15, 2002, at 44. 6 Strong impulses to regulate the domestic airline industry have remained con- stant notwithstanding the social, political, and economic transformations result- ing from September 11. As Representative Peter DeFazio (D-Or.) notes: This was an industry that was tremendously mismanaged before 9/11 . Remember the big subject before 9/11 was passenger rights because people felt so abused ... We need to begin to think about whether we're going to have to regulate this industry again. NBC NEws' Meet the Press (NBC television broadcast, Aug. 18, 2002).. See also Con- gress Calls Airline Execs on Carpet, ATLANTA J.-CONST., Feb. 7, 2001, at 2 (noting Senator Ernest Hollings's (D-S.C.) self-characterization as a "born-again regulator"). 7 Zachary Garsek, Comment, Giving Power Back to the Passengers: The Airline Pas- sengers'Bill of Rights, 66J. AIR L. & COM. 1187, 1190 (2001) (surveying 1999 legis- lation, reporting related Congressional testimony and suggesting that, if voluntary airline efforts are "fruitless, the state of customer service in the airline industry has disintegrated to the point that some government regulation is neces- sary."); Brent D. Bowen & Dean E. Headley, The Airline Quality Rating 2001, at 7 ("Given the complexity of the problem, lack of desire by the airlines to help themselves and the consumer, and the need to better utilize public resources, government intervention seems necessary and appropriate."). 8 See, e.g., GEORGE WILLIAMS, AIRLINE COMPETITION: DEREGULATION'S MIXED LEGACY (Ashgate 2002); KENNETH BUTrON & ROGER STOUGH, AIR TRANSPORT NET- WORKS (2000); GEORGE WILLIAMS, THE AiRLINE INDUSTRY AND THE IMPACT OF DER- EGULATION (1993); PAUL STEPHEN DEMPSEY & ANDREW R. GOETZ, AIRLINE DEREGULATION AND LAISSEZ-FAIRE MYTHOLOGY (1992); Laurence E. Gesell & Mar- tin T. Farris, Airline Deregulation: An Evaluation of Goals and Objectives, 21 TRANSP. L.J. 105 (1992); Theodore P. Harris, The Disaster of Deregulation,20 TRANSP. L.J. 87 (1991); Alfred E. Kahn, Deregulation:Looking Backward and Looking Forward,7 YALE 938 JOURNAL OF AIR LAW AND COMMERCE vice-oriented initiative of the PBOR legislation as one negatively implicating and undermining the efficacy and future of com- mercial airline deregulation policy.